October 26, 2021, opinions

Posted on by tadbartlett

Designated for publication

  • Mandawala v. Northeast Baptist Hospital, 20-50981, appeal from W.D. Tex.
    • Smith, J. (Jones, Smith, Haynes), Haynes, J., concurring in judgment only; discrimination, recusal
    • Affirming dismissal of pro se plaintiff’s claims against school, arising from failure of classes, for racial discrimination, First Amendment retaliation, loss of procedural due process, defamation, and intentional infliction of emotional distress; affirming dismissal of claims against school’s attorneys arising from alleged conspiracy leading to dismissal of state court lawsuit; affirming dismissal of school’s parent corporation for failure to serve; affirming denial of recusal of district court judge.
  • U.S. v. Adair, 21-50218, appeal from W.D. Tex.
    • Higginson, J. (Higginbotham, Higginson, Duncan), criminal, sentencing
    • Affirming 57-month sentence on guilty plea conviction of possessing a firearm after a felony conviction.
    • The Court rejected defendant’s argument that “the district court erred in assigning a base offense level under U.S.S.G. § 2K2.1(a)(4)(A) because his prior Texas robbery conviction does not constitute a ‘crime of violence.'”
    • The Court held that the fourth footnote in United States v. Santiesteban-Hernandez, 469 F.3d 376 (5th Cir. 2006) did not alter the holding that Texas robbery is a “crime of violence.”
  • Wages and White Lion Investments, L.L.C. v. U.S. Food and Drug Administration, 21-60766, petition for review of FDA order
    • Oldham, J. (Elrod, Oldham, Wilson), administrative law, Administrative Procedures Act
    • Granting stay pending disposition of petition for review of FDA’s marketing denial order to petitioner Triton, a manufacturer of flavored e-cigarettes.
    • The Court held that Triton showed a strong likelihood of success on the merits of its claim that the FDA order violated the APA by failing to reasonably consider relevant issues and reasonably explain its order. The Court found that the FDA ignored Triton’s proposed marketing plan. The Court held that “efficiency is no substitute for reasoned decisionmaking.” The Court also rejected the FDA’s statement that it stopped considering proposed marketing plans because previous ones had been unpersuasive; “[t]hat’s like an Article III judge saying that she stopped reading briefs because she previously found them unhelpful.”
    • The Court also held that the FDA impermissibly “failed to reasonably consider Triton’s legitimate reliance interests.” The Court noted that the FDA had previously informed regulated entities that it would not require long-term studies in support of their marketing plans, then denied those marketing plans on the basis of the lack of long-term studies.
    • The Court also held that the FDA “insufficiently addressed alternatives to issuing the Order….” Accordingly, the Court held that there was a substantial likelihood that the FDA’s order would be found to be arbitrary and capricious.
    • The Court also held that irreparable injury was shown, because as a result of the FDA Order Triton stopped manufacturing products representing 90 percent of its income stream.

Unpublished

  • U.S. v. Carviel, 20-11238, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, sentencing
    • Granting summary affirmance of 120-month sentence on conviction of conspiracy to commit a violation of 18 U.S.C. § 924(c).
  • Oliver v. Champion, 20-20438, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Willett), First Amendment
    • Affirming summary judgment in favor school district defendants on plaintiff’s claim of compelled speech under the school district’s Pledge of Allegiance policy, on basis that there was no genuine issue of fact that no one actually compelled the student to recite the Pledge.
  • U.S. v. Rodriguez-Ramirez, 20-20596, appeal from S.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Sierra-Alvarado v. Garland, 20-60365, petition for review of BIA order
    • per curiam (Barksdale, Willett, Duncan), immigration
    • Denying Honduran citizen’s petition for review of BIA order denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture.
  • U.S. v. Large, 21-10344, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Arias-Avila, 21-20227, appeal from S.D. Tex.
    • per curiam (Barksdale, Willett, Duncan), criminal, sentencing
    • Affirming 48-month sentence on conviction of illegal reentry.
  • U.S. v. Castro-Rios, 21-40274, appeal from S.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Groys, 21-40338, appeal from E.D. Tex.
    • per curiam (Stewart, Haynes, Ho), criminal
    • Dismissing for lack of jurisdiction appeal from 2015 conviction of possession of child pornography and imposition of 78-month sentence.
  • U.S. v. Rodriguez, 21-50096, appeal from W.D. Tex.
    • per curiam (Costa, Ho, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Diaz-Quintana, 21-50558, c/w 21-500568, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
    • Granting summary affirmance of conviction and sentence under 8 U.S.C. § 1326(a) and (b)(2).
  • Wheeler v. Mississippi State Parole Board, 21-60386, appeal from S.D. Miss.
    • per curiam (Barksdale, Willett, Duncan), prisoner suit
    • Affirming dismissal of prisoner’s § 1983 claims that his parole board hearing violated his procedural due process rights.
  • Stanton-Black v. Garland, 21-60782, petition for review of BIA order
    • per curiam (Smith, Higginson, Willett), immigration
    • Denying Jamaican citizen’s motion for stay pending removal.